Curtea de Apel Alba Iulia and Others v YF and Others (C-301/21)

Contents

Judgment of the Court (Sixth Chamber)20 October 2022^note(Reference for a preliminary ruling — Social policy — Equal treatment in employment and occupation — Directive 2000/78/EC — Article 2(1) and (2) — Prohibition of discrimination on the grounds of age — National legislation as a result of which the salary paid to certain judges is higher than that of other judges of the same level and performing the same duties — Article 1 — Subject matter — Forms of discrimination listed exhaustively)In Case C‑301/21,REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel Oradea (Court of Appeal, Oradea, Romania), made by decision of 12 April 2021, received at the Court on 11 May 2021, in the proceedingsCurtea de Apel Alba Iulia and OthersvYF and Others,intervening parties:Consiliul Naţional pentru Combaterea Discriminării,Tribunalul Cluj,THE COURT (Sixth Chamber),composed of A. Arabadjiev (Rapporteur), President of the First Chamber, acting for the President of the Sixth Chamber, and A. Kumin and I. Ziemele, Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– the Romanian Government, by E. Gane, acting as Agent, and by A. Wellman, consilier,– Ireland, by M. Browne, A. Joyce and J. Quaney, acting as Agents, and by D. Fennelly, BL,– the European Commission, by M. Carpus Carcea and D. Martin, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 1, Article 2(1) and (2), the last sentence of Article 3(1)(c) and Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) and of Article 47(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2The request has been made in proceedings between YF and Others, seven Romanian judges (‘the judges in question’), on the one hand, and the Curtea de Apel Alba Iulia (Court of Appeal, Alba Iulia, Romania) and four other Romanian courts, as employers of those judges (‘the courts concerned’), on the other, concerning an application seeking an order that those courts pay the judges in question compensation of the difference between the salary they were actually paid and the salary they would have been paid under national legislation which they believe applies to them, on the grounds of alleged discrimination in respect of employment.

Legal context

European Union law

3Article 1 of Directive 2000/78 states: ‘the purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’

4Article 2(1) and (2) of that directive provides:1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.2.For the purposes of paragraph 1:(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or(ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.’

5Article 3(1) of that directive provides:‘Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:…(c) employment and working conditions, including dismissals and pay’.

6Article 9(1) of that directive reads as follows:‘Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.’

Romanian law

OG No 137/2000

7Under Article 1(2)(a) of Ordonanţa Guvernului nr. 137/2000 privind prevenirea și sancționarea tuturor formelor de discriminare (Government Legislative Decree No 137/2000 on the prevention and punishment of all forms of discrimination) of 31 August 2000 (Monitorul Oficial al României, Part I, No 166 of 7 March 2014), in the version applicable to the dispute in the main proceedings (‘OG No 137/2000’), the principle that all citizens are to be equal and the principle that there are to be no privileges or discrimination are to be ensured in the exercise of, inter alia, the right to equal treatment before the national courts or any other judicial body.

8Article 2(1) and (3) of OG No 137/2000 provides:1. For the purposes of this legislative decree, discrimination shall mean any distinction, exclusion, restriction or preference applied on the grounds of race, nationality, ethnic origin, language, religion, social class, belief, gender, sexual orientation, age, disability, non-contagious chronic illness, HIV-positive status, membership of a disadvantaged group and any other criterion the purpose or effect of which is to restrict or refuse the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms or the rights recognised by law in the political, economic, social and cultural sphere or in any other area of public life.2. A provision that discriminates against persons on any of the grounds referred to in paragraph 1 shall be treated as discriminatory for the purposes of this legislative decree.3. According to this legislative decree, apparently neutral provisions, criteria or practices that place certain persons at a disadvantage compared with other persons, on the grounds of the criteria listed in paragraph 1, shall be discriminatory, unless those provisions, criteria or practices are objectively justified by a legitimate aim and the means for achieving that aim are appropriate and necessary.’

9Article 5 of OG No 137/2000 specifies that a difference in treatment based on a characteristic linked to the criteria referred to in Article 2(1) of that legislative decree will not constitute discrimination where, as a result of the nature of the occupational activities or the context in which they take place, that characteristic is a genuine and decisive occupational requirement, provided the aim is legitimate and the requirement is proportionate.

10According to Article 27(1) and (2) of OG No 137/2000:1. Any person who considers himself to be the victim of discrimination may seek judicial redress and the restoration of the status quo ante or the elimination of the situation to which the discrimination gave rise, in accordance with the provisions of general law. …2. The time limit for bringing an action shall be three years from the date on which the facts occurred or the date on which the person concerned could have become aware of them.’

OUG No 27/2006

11Article 2 of Ordonanţa de urgenţă a Guvernului nr. 27/2006 privind salarizarea şi alte drepturi ale judecătorilor, procurorilor şi altor categorii de personal din sistemul justiţiei (Urgent Government Legislative Decree No 27/2006 on the remuneration and other entitlements of judges, prosecutors and other categories of staff in the judicial system) of 29 March 2006 (Monitorul Oficial al României, Part I, No 314 of 7 April 2006), in the version applicable to the dispute in the main proceedings (‘OUG No 27/2006’), reads as follows:‘The remuneration and other entitlements of judges, prosecutors and similar personnel and deputy judges shall be determined having regard to the key role that justice plays in the rule of law, the responsibility, complexity and risks involved in their posts and the disqualifications and prohibitions established by law for those categories of personnel.’

12Article 3 of OUG No 27/2006 provides that in return for the work performed judges, prosecutors, deputy judges and judicial personnel similar to judges and prosecutors are to be entitled to a gross monthly management allowance set according to the level of the court or prosecutor’s office, the post held and the length of service in the judiciary, on the basis of the ‘sectoral reference value’ and the multiplier rates referred to in the annex that forms an integral part of OUG No 27/2006.

13Under Article 11 of OUG No 27/2006, the public prosecutors of the Direcția Națională Anticorupție (National Anti-Corruption Directorate) and the Direcția de Investigare a Infracțiunilor de Criminalitate Organizată și Terorism (Directorate for Investigating Organised Crime and Terrorism) are paid remuneration in accordance with the provisions of Part A, points 6 to 13, of the annex to that urgent government legislative decree, having regard to the posts they hold or that they are treated as holding under the legislation.

14According to Article 40 of OUG No 27/2006, its provisions have applied from April 2006.

15Part A of the annex to OUG No 27/2006, entitled ‘Multiplier rates’, contains point 13 which specifies that the multiplier rate of 19.00 corresponds to the post of ‘prosecutor’ with the prosecutor’s office of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania). The same rate is also laid down in point 14 of Part A of that annex for the post of ‘president, prosecutor general’ of the courts of appeal and the prosecutors’ offices at the courts of appeal.

OG No 10/2007

16Article 1 of Ordonanţa Guvernului nr. 10/2007 privind creşterile salariale ce se vor acorda în anul 2007 personalului bugetar şi personalului salarizat potrivit Ordonanței de urgență a Guvernului nr. 24/2000 privind sistemul de stabilire a salariilor de bază pentru personalul contractual din sectorul bugetar și personalului salarizat potrivit anexelor nr. II şi III la Legea nr. 154/1998 privind sistemul de stabilire a salariilor de bază în sectorul bugetar şi a indemnizaţiilor pentru persoane care ocupă funcţii de demnitate publică (Government Legislative Decree No 10/2007 on the salary increases to be granted in 2007 to budgetary personnel and salaried personnel in accordance with Urgent Government Legislative Decree No 24/2000 on the system for setting base salaries for contractual staff in the budgetary sector and for salaried staff under Annexes II and III to Law No 154/1998 on the system for setting base salaries for the budgetary sector and allowances for public officials) of 31 January 2007 (Monitorul Oficial al României, Part I, No 80 of 1 February 2007), in the version applicable to the dispute in the main proceedings (‘OG No 10/2007’), provides as follows:‘In 2007, the base salaries of contractual personnel in the budgetary sector … have been increased …:(a) by 5% from 1 January 2007, compared with the salary for December 2006;(b) by 2% from 1 April 2007, compared with the salary for March 2007;(c) by 11% from 1 October 2007, compared with the salary for September 2007.’

Framework Law No 330/2009

17Article 1(1) and (2) of Legea-cadru nr. 330/2009 privind salarizarea unitară a personalului plătit din fonduri publice (Framework Law No 330/2009 on the uniform remuneration of staff paid from the public purse) of 5 November 2009 (Monitorul Oficial al României, Part I, No 762 of 9 November 2009), in the version applicable to the dispute in the main proceedings (‘Framework Law No 330/2009’), came into force on 1 January 2010. That provision is worded as follows:1. This law is intended to govern implementation of a uniform system of remuneration for staff in the budgetary sector paid from the consolidated general State budget.2. From the date on which all or part of this law comes into force, the entitlements of the personnel referred to in paragraph 1 shall be and shall remain exclusively those laid down by this law. …’

18It can be seen from Article 2 of Framework Law No 330/2009 that it applies to the personnel of public authorities and institutions, which expressly include the judicial authority.

19According to Article 12(1) of that framework law, the annexes to the framework law lay down the ranking coefficients on the basis of which the monthly management allowances, bonuses and other entitlements specific to each area of activity are set. According to Article 12(2) of Framework Law No 330/2009, ranking coefficient 1.00 for 2010 was RON 705 (approximately EUR 143.15) and the increase in ranking coefficient 1.00 after 2010 was subject to the reduction in the number of employees, required in order to achieve the annual targets for staff expenditure as a share of gross domestic product (GDP) laid down in Article 5 of that framework law, in order to achieve a ranking coefficient 1.00 of RON 1110 (approximately EUR 225.39) in 2015. Furthermore, Article 12(3) of that framework law provides that, for 2010, the monthly management allowances would be set in accordance with Article 30(5) of Framework Law No 330/2009and that the ranking coefficients established in the annexes to that framework law would not be used.

20Article 30(5) of Framework Law No 330/2009 reads as follows:‘In 2010, personnel in post on 31 December 2009 shall retain their salary and shall not be affected by the staff expenditure reduction measures for December 2009, as follows:(a) the monthly management allowance shall be … that corresponding to the duties for December 2009, plus the bonuses included in that allowance in accordance with the annexes to this law;(b) the bonuses established in the annexes to this law, which have not been included in … the monthly management allowance, shall be granted in an amount giving rise to a value equal to the amount calculated for December 2009.’

The Labour Code

21Article 5 of Legea nr. 53/2003 privind Codul muncii (Law No 53/2003 on the Labour Code) of 24 January 2003 (Monitorul Oficial al României, Part I, No 72 of 5 February 2003), in the version applicable to the dispute in the main proceedings (‘the Labour Code’), provides:1. Employment relations shall be governed by the principle that all employees and employers shall be treated equally.2 Any direct or indirect discrimination against an employee on the grounds of sex, sexual orientation, genetic features, age, membership of a national group, race, colour, ethnicity, religion, political choices, social origin, disability, family situation and responsibilities or trade union membership or activity shall be prohibited.3. Exclusionary acts and circumstances and any difference, restriction or preference, based on one or more of the criteria listed in paragraph 2, whose purpose or effect is to refuse, restrict or prevent the recognition, use or exercise of the rights laid down in the employment legislation shall constitute direct discrimination.4. Acts and circumstances apparently based on criteria other than those referred to in paragraph 2 but which have the same effects as direct discrimination shall constitute indirect discrimination.’

22According to Article 268(1)(c) of the Labour Code, applications seeking to resolve an employment dispute may be made within three years from the date on which the cause of action arose, where the subject matter of an individual employment dispute consists of claims for the payment of unpaid salary or compensation owed to the employee, and where employees have financial liability to the employer.

The Law on social dialogue

23Article 211 of Legea nr. 62/2011 a dialogului social (Law No 62/2011 on social dialogue) of 10 May 2011 (republished in the Monitorul Oficial al României, Part I, No 625 of 31 August 2012), in the version applicable to the dispute in the main proceedings (‘the Law on social dialogue’), provides as follows:‘Actions may be brought by persons whose rights have been infringed, as follows:…(c) claims for damages for loss and injury sustained and the recovery of undue payments may be brought within three years from the date on which the damage occurred.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

24During the period 2006 to 2009, the majority of judges working in Romania (‘the existing judges’) obtained judicial decisions acknowledging that they were entitled to be paid increased gross monthly management allowances taking into account, first, application of a higher multiplier rate to their salaries, corresponding to the multiplier rate enjoyed by prosecutors at the National Anti-Corruption Directorate and the Directorate for Investigating Organised Crime and Terrorism and, secondly, an increased sectoral reference value, in accordance with Article 1 of OG No 10/2007.

25As a result of the entry into force of Framework Law No 330/2009 on 1 January 2010, judges’ salaries were calculated in the same way for all judges, in accordance with the provisions of that law, and all the actions brought by judges who began work from 1 January 2010 seeking to benefit from the salary increases referred to in the preceding paragraph were dismissed on the grounds of that pay equality.

26By decision No 7/2019 of 11 February 2019, which is binding on the national courts, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), hearing an appeal on a point of law, held that, under Article 1(2) of Framework Law No 330/2009, the increases established in Article 1(1) of OG No 10/2007 were and remained included in the gross monthly management allowance even after that framework law had entered into force (‘the High Court of Cassation and Justice judgment’).

27As a result of the High Court of Cassation and Justice judgment, the Ministerul Justiției (Romanian Ministry of Justice) allocated funds to the courts to pay the existing judges retroactive salary increases under the decisions favourable to them handed down in the period 2006 to 2009. In contrast, the Ministry of Justice refused to unblock funds for the other judges, such as the judges in question, who had not benefited from those judicial decisions.

28Against that background, on 10 March 2020, the judges in question brought proceedings before the Tribunalul Bihor (Regional Court, Bihor, Romania), seeking an order that the courts concerned pay them compensation of the difference between the salary they were actually paid and the salary they would have been paid taking into account the multiplier rate established by OUG No 27/2006. In support of that action, they argued that they were being discriminated against compared with the existing judges who had received a salary increase, given that they performed the same work, over the same period and for the same employer. The courts concerned, first, claimed that the action was time-barred, under Article 211(c) of the Law on social dialogue, submitting that more than three years had elapsed since the date on which the alleged damage occurred, and, secondly, argued that in the present case there was no discrimination because the two categories of judges are not in comparable situations.

29By judgment of 18 September 2020, the Tribunalul Bihor (Regional Court, Bihor) upheld the action brought by the judges in question. That court rejected the plea of limitation, on the grounds that the special three-year limitation period under Article 27(2) of OG No 137/2000 was applicable, running as it does from the date on which the discriminatory event occurred or from the date on which the person concerned could have become aware of it. That court also found that the courts concerned had caused discrimination against the judges in question by paying retroactive salary increases only to certain judges. The courts concerned were therefore ordered to pay the judges in question the same salary increases as they had paid retroactively to the existing judges in December 2019 and January 2020.

30The courts concerned appealed against that judgment to the referring court, the Curtea de Apel Oradea (Court of Appeal, Oradea, Romania). They maintain, in essence, that the judges in question cannot claim to have been discriminated against, because the salary increases were paid to the existing judges on the basis of judicial decisions obtained by them, after those decisions had been interpreted by the High Court of Cassation and Justice judgment. In their view, the judges in question cannot rely on those decisions.

31The judges in question contend for their part that, although they were not yet judges in the period during which judicial decisions were obtained by the existing judges, between 2006 and 2009, the fact remains that the High Court of Cassation and Justice judgment was delivered subsequently to that period, meaning that the effects of those decisions were extended in respect of the future. Those effects therefore also covered a period during which the judges in question performed their duties at the same time as the existing judges, that is to say, the period between 2010 and 2015.

32The referring court notes that, according to the national legislation, disputes in employment law matters relating to the payment of outstanding remuneration rights are subject to a three-year limitation period, governed by Article 268(c) of the Labour Code, which runs from the date on which the right to bring proceedings arose and that, in parallel, Article 211(c) of the Law on social dialogue provides that claims can be made by persons whose rights have been infringed within a period of three years from the date on which the damage occurred. Against that background, that court is uncertain whether the right of access to a court would be guaranteed if the plea of time barring was upheld.

33The referring court also notes that it is only because the judges in question are younger and were appointed to their posts subsequently to the actions brought by the existing judges in the period 2006 to 2009 that the courts concerned are denying them those rights, since they worked under the same conditions during the period 2010 to 2015. It therefore enquires whether an interpretation of EU law according to which proceedings can no longer be brought to claim the salary increases because the right to bring proceedings is time-barred gives rise to discrimination between, on the one hand, the existing judges, in respect of whom the courts concerned acknowledged and paid those increases in December 2019 and January 2020, and, on the other, the judges, such as the judges in question, in respect of whom those courts have not acknowledged entitlement to those increases and who brought proceedings in 2020, even though during the same period both categories of judges worked for the same employer and performed the same duties.

34In those circumstances, the Curtea de Apel Oradea (Court of Appeal, Oradea) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Must Article 9(1) of [Directive 2000/78] which ensures that judicial procedures are “available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them”, and the first paragraph of Article 47 of the [Charter], which guarantees the right to “an effective remedy [and] a fair … hearing”, be interpreted as precluding national legislation, such as that laid down in Article 211(c) of [the Law on social dialogue], which provides that the three-year time limit for bringing a claim for compensation runs “from the date on which the damage occurred”, irrespective of whether or not the claimants were aware of the occurrence of the damage (and the extent thereof)?(2) Must Article 2(1) and (2) of [Directive 2000/78], together with Article 3(1)(c), in fine, thereof, be interpreted as precluding national legislation, such as that laid down in Article 1(2) of [Framework Law No 330], as interpreted [by the High Court of Cassation and Justice judgment], in circumstances in which the [judges in question] did not have the legal possibility of requesting an increase in their employment allowance on entering the judiciary at a date after the entry into force of [Framework Law No 330/2009], a legislative act which expressly provided that remuneration rights are to be and remain exclusively as provided in [that] law, thus creating remuneration discrimination as compared with their colleagues, including on the basis of the criterion of age, which means in fact that only older judges, who were appointed before January 2010 (who benefited from court rulings in the period from 2006 to 2009, the operative parts of which were subject to interpretation in 2019 pursuant to [the High Court of Cassation and Justice judgment]), received retroactive payment of remuneration rights (similar to those sought in the action which forms the subject matter of the present proceedings) during December 2019 and January 2020, in respect of the period from 2010 to 2015, even though during that period the [judges in question] also acted as judges and performed the same work, under the same conditions and in the same institution?(3) Must the provisions of [Directive 2000/78] be interpreted as precluding discrimination only where it is based on one of the criteria referred to in Article 1 thereof or, to the contrary, do those provisions, possibly supplemented by other provisions of EU law, generally preclude one employee from being treated differently from another, in respect of remuneration, where he or she performs the same work, for the same employer, [during the] same period, and under the same conditions?’

The request for an expedited procedure

35The referring judge has asked that the present request for a preliminary ruling be determined pursuant to an expedited procedure under Article 105 of the Rules of Procedure of the Court of Justice. In support of its request, that court asserts that an expedited procedure is justified because of tension existing at the Romanian courts as a result of the very large difference in pay between judges.

36Article 105(1) of the Rules of Procedure provides that, at the request of the referring court or tribunal or, exceptionally, of his or her own motion, the President of the Court may, where the nature of the case requires that it be dealt with within a short time, after hearing the Judge-Rapporteur and the Advocate General, decide that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure.

37It must be borne in mind, in that regard, that such an expedited procedure is a procedural instrument intended to address matters of exceptional urgency. Furthermore, it is also apparent from the Court’s case-law that the expedited procedure may not be applied where the sensitive and complex nature of the legal problems raised by a case does not lend itself easily to the application of such a procedure, in particular where it is not appropriate to shorten the written part of the procedure before the Court (judgment of 23 November 2021, IS (Illegality of the order for reference), C‑564/19, EU:C:2021:949, paragraph 54 and the case-law cited).

38In the present case, by decision of 28 June 2021, the President of the Court, after hearing the Judge-Rapporteur and the Advocate General, refused the request that the present case be determined under an expedited procedure.

39Neither the litigants’ interest in the swiftest possible determination of the extent of their rights under EU law, important and legitimate though it is, nor the fact that the case in the main proceedings is economically or socially sensitive, however, implies that it must be dealt with within a short time within the meaning of Article 105(1) of the Rules of Procedure.

Admissibility of the request for a preliminary ruling

40In its written observations, the Romanian Government challenges the admissibility of the request for a preliminary ruling. It submits, first, that the referring court has not provided the factual or legal material necessary to enable the Court to give an answer of use in resolving the dispute in the main proceedings and, secondly, that the referring court has failed to provide a sufficient explanation of its choice of the provisions of EU law for which it requests an interpretation, or the link which it establishes between those provisions and the domestic legislation applicable to that dispute.

41In that regard, it must be recalled that, according to settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 8 October 2020, Universitatea ‘Lucian Blaga’ Sibiu and Others, C‑644/19, EU:C:2020:810, paragraph 21 and the case-law cited).

42It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 8 October 2020, Universitatea ‘Lucian Blaga’ Sibiu and Others, C‑644/19, EU:C:2020:810, paragraph 22 and the case-law cited).

43In the present case, although the information provided by the referring court in the description of the factual background is in certain respects incomplete, the request for a preliminary ruling nevertheless contains sufficient information for the Court to be able to understand both the questions referred for a preliminary ruling and their scope.

44Furthermore, it is not obvious that the provisions of EU law mentioned in the questions raised by the referring court, which concern alleged discrimination on the grounds of age prohibited in the context of employment and working relationships, bear no relation to the main proceedings.

45It is clear from the foregoing that the request for a preliminary ruling is admissible.

The questions referred

The second question

46By its second question, which it is appropriate to examine first, the referring court enquires, in essence, whether Article 2(1) and (2) of Directive 2000/78 precludes national legislation which, as interpreted by binding national case-law, has the effect that the salary paid to certain judges employed after that legislation came into force is lower than that of judges employed before it came into force.

47The referring court asks, in particular, whether the fact that the judges in question, who were employed after 1 January 2010, did not have an opportunity to claim an increase in their salary for the period between 2010 and 2015, by virtue of the decisions obtained by the existing judges in the period 2006 to 2009, on the grounds that they were not in post at that time, places them in a less favourable situation by reason of their age, within the meaning of Article 2(1) and (2) of Directive 2000/78, compared with the existing judges, who, in court proceedings, obtained retroactive payment of their increased salary for that period.

48It must be borne in mind in that respect, first, that it is clear from Article 3(1)(c) of Directive 2000/78 that that directive applies, within the limits of the areas of competence conferred on the European Union, to all persons, as regards both the public and the private sector, including public bodies, in relation to, inter alia, employment and working conditions, including dismissals and pay. Accordingly, pay conditions for civil servants, including judges, fall within the scope of Directive 2000/78 (see to that effect, judgment of 7 February 2019, Escribano Vindel, C‑49/18, EU:C:2019:106, paragraph 40 and the case-law cited ).

49Second, it should also be recalled that it is clear from Article 2(1) of Directive 2000/78, read together with Article 1 thereof, that for the purposes of that directive the principle of equal treatment means that there must be no direct or indirect discrimination whatsoever on the grounds, inter alia, of age. Moreover, it is clear from Article 2(2)(b) of that directive that, for the purposes of that directive, indirect discrimination on the grounds of age occurs where an apparently neutral provision, criterion or practice would put persons having a particular age at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

50In the present case, it is necessary to determine whether the national legislation at issue in the main proceedings gives rise to a difference in treatment between the judges in question and the existing judges, by reason of their age.

51It must be observed in that respect, first, as Ireland observed in its written observations, that the referring court has not indicated either the age of the judges in question or the age profile or structure of personnel in the Romanian judicial system.

52Furthermore, as the Romanian Government stated in its written observations, there is no indication in the relevant national legislation that age is a criterion for entering the judiciary or a criterion in judges’ remuneration.

53Therefore, it must be held that there is no direct discrimination on the grounds of age.

54Secondly, it is clear that the referring court has not identified any specific category of judges that has been placed at a particular disadvantage associated with age, and has merely noted that the refusal to grant a salary increase to the judges in question for the period between 2010 and 2015 is the result, on the one hand, of the fact that they began work after Framework Law No 330/2009 came into force and, on the other, of the fact that they had not, before that law came into force, obtained judicial decisions confirming their entitlement to salary increases.

55In the first place, Article 2(2) of Directive 2000/78 cannot be interpreted as meaning that it prevents new national legislation from applying only to situations arising after it came into force, since the fact that it does so is the result solely of the temporal effect of the applicability of a new law and does not, in itself, constitute indirect discrimination on the grounds of age.

56It should also be borne in mind that the criterion which renders the application of new rules dependant exclusively on the date of recruitment as an objective and neutral factor, is manifestly unconnected to any taking into account of the age of the persons recruited (judgment of 14 February 2019, Horgan and Keegan, C‑154/18, EU:C:2019:113, paragraph 25 and the case-law cited).

57In the second place, as regards the fact that the judges in question had not, before the entry into force of new national legislation, obtained judicial decisions confirming their entitlement to the increased salary, it must be held that any such difference in treatment is the result not of the age of the judges in question but of the fact that they had not obtained favourable judicial decisions.

58That criterion therefore appears not to be in any way connected with the age of those judges or any other grounds of discrimination prohibited by Directive 2000/78.

59Under those circumstances, it must be held that the information in the request for a preliminary ruling likewise does not suggest that the national legislation at issue in the main proceedings engenders any indirect discrimination on the grounds of age.

60It follows that a situation such as that at issue in the main proceedings does not fall within the general framework laid down in Article 2(2) of Directive 2000/78 for the purposes of combating certain forms of discrimination in the workplace.

61Having regard to the foregoing, the second question should be answered to the effect that Article 2(1) and (2) of Directive 2000/78 must be interpreted as meaning that it does not apply to national legislation which, as interpreted by binding national case-law, has the effect that the salary paid to certain judges employed after that legislation came into force is lower than that of judges employed before it came into force, because it does not give rise to any direct or indirect discrimination on the grounds of age.

The third question

62By its third question, which it is appropriate to examine in the second place, the referring court enquires, in essence, whether Directive 2000/78, possibly supplemented by other provisions of EU law, precludes any discrimination on grounds other than those expressly referred to in Article 1 of that directive.

63It must be recalled from the outset that, according to that provision and to Article 2(1) and Article 2(2)(b) of Directive 2000/78, indirect discrimination on the grounds of ‘religion or belief, disability, age or sexual orientation as regards employment and occupation’ is prohibited.

64In that connection, it is clear from consistent case-law that, in accordance with Article 2(1) of Directive 2000/78, the grounds set out in Article 1 of the directive are listed exhaustively (judgment of 8 October 2020, Universitatea ‘Lucian Blaga’ Sibiu and Others, C‑644/19, EU:C:2020:810, paragraph 31 and the case-law cited).

65It must also be observed that Directive 2000/78 was adopted on the basis of Article 13 EC, now Article 19 TFEU, which provides, in essence, that the Council of the European Union may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

66However, the Court has held that the article in question does not refer to discrimination based on grounds other than those that it lists, so that it cannot even constitute a legal basis for EU measures to combat such discrimination (see, to that effect, judgment of 7 July 2011, Agafiţei and Others, C‑310/10, EU:C:2011:467, paragraph 35 and the case-law cited).

67It must therefore be held that any discrimination based on grounds other than those expressly referred to in Article 1 of Directive 2000/78 falls outside the scope of that directive.

68That finding is not called into question by the fact, put forward by the referring court, that Directive 2000/78 could be ‘supplemented’ in that respect by other EU provisions, which that court moreover does not specify. It is in fact not apparent from any material in the case file before the Court that the difference in treatment alleged by the judges in question falls within the scope of any other specific provision of EU law.

69In the light of the foregoing, the third question should be answered to the effect that Directive 2000/78 must be interpreted as meaning that it precludes discrimination only where that discrimination is based on one of the grounds that it lists expressly in Article 1.

The first question

70By its first question, which it is appropriate to examine last, the referring court asks in essence whether Article 9(1) of Directive 2000/78 and the first paragraph of Article 47 of the Charter preclude national legislation according to which the time limit for bringing a claim for compensation for alleged discrimination is three years from the date on which the damage occurred, irrespective of whether or not the applicant was aware of the occurrence of the damage and of its extent.

71It must be observed at the outset that, in the light of the answer given to the second question, from which it is clear that the difference in treatment alleged by the judges in question does not fall within the scope of application of Directive 2000/78, it is not necessary to answer the first question in the light of the provisions of that directive.

72Nevertheless, since that question also refers expressly to a provision of the Charter, it should be recalled that the scope of application of the Charter is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing European Union law (judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 17).

73The Court has indicated in that respect that the concept of ‘implementing Union law’, as referred to in Article 51 of the Charter, requires a certain degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other (judgment of 6 March 2014, Siragusa, C‑206/13, EU:C:2014:126, paragraph 24 and the case-law cited).

74It follows that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law, but not outside such situations (judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 19).

75Accordingly, where the provisions of EU law in the area concerned do not govern an aspect of a given situation and do not impose any specific obligation on the Member States with regard thereto, the national rule enacted by a Member State as regards that aspect falls outside the scope of the Charter and the situation concerned cannot be assessed in the light of the provisions of the Charter (judgment of 19 November 2019, TSN and AKT, C‑609/17 and C‑610/17, EU:C:2019:981, paragraph 53 and the case-law cited). In such a situation, the Court therefore does not have jurisdiction and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction (see, to that effect, judgment of 16 December 2021, AB and Others (Revocation of an amnesty), C‑203/20, EU:C:2021:1016, paragraph 39).

76In the present case, as the Romanian Government and the Commission noted in their written observations, a finding that Directive 2000/78 does not apply to the dispute in the main proceedings, as made in paragraphs 51 to 60 of the present judgment, suggests that the national legislation at issue in the main proceedings cannot be regarded as implementing EU law, within the meaning of Article 51(1) of the Charter, a matter which it is for the referring court to determine.

77In addition, it must be observed that the request for a preliminary ruling contains no other material from which it can be inferred that there is a certain degree of connection, within the meaning of the case-law referred to in paragraph 73 of the present judgment, between the national legislation at issue in the main proceedings and any other act of EU law.

78This means that a difference in treatment such as that alleged by the judges in question, if any, is the result exclusively of national law, which it is for the referring court alone to interpret.

79The Court therefore does not have jurisdiction to answer the first question referred.

Costs

80Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Sixth Chamber) hereby rules:

1.Article 2(1) and (2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that it does not apply to national legislation which, as interpreted by binding national case-law, has the effect that the salary paid to certain judges employed after that legislation came into force is lower than that of judges employed before it came into force, because it does not give rise to any direct or indirect discrimination on the grounds of age.

2.Directive 2000/78 must be interpreted as meaning that it precludes discrimination only where that discrimination is based on one of the grounds that it lists expressly in Article 1 thereof.